Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.

In 1960 Congress authorized the Federal Communications Commission (FCC) to impose civil forfeitures under 18 U.S.C. § 1464 against “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” The FCC first exercised its authority to regulate indecent non-obscene speech in 1975 when brought forfeiture proceedings against the Pacifica Foundation for an afternoon broadcast of George Carlin’s “Filthy Words” monologue. In FCC v. Pacifica Foundation, the Court held that the FCC could restrict indecent speech that did not meet the legal definition of obscenity due to the fact that broadcast television and radio is “uniquely accessible to children.”

Citing the Pacifica decision, the FCC brought indecency actions against several broadcast studios for expletives uttered during live awards shows and depictions of partial female nudity in the program NYPD Blue. The district court found the violations during the awards shows were actionable, but the Second Circuit vacated the decision and remanded it to the district court. The Supreme Court granted cert on the issue of whether “fleeting expletives” violated 18 U.S.C. § 1464 and reversed the Second Circuit. On remand, the Second Circuit again vacated the district court. The Supreme Court has once again granted cert to answer the question: “Whether the FCC’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.”

The FCC argues (1) broadcasters had constitutionally sufficient notice that the expletives and nudity in the broadcasts would violate the FCC’s indecency standards since the FCC issued a comprehensive policy statement in 2001; and (2) because the broadcasters are highly sophisticated entities operating in a heavily regulated market, it is reasonable for them to be expected to be familiar with both the FCC’s indecency standard and with contemporary community standards for the broadcast medium, and this familiarity is evinced by the broadcasters’ internal rules dedicated to compliance with those standards.